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TMI Blog2020 (9) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The Appellant case is that she and her late husband has invested huge amount in the Corporate Debtor, and she is a senior citizen. The Corporate Debtor has failed to provide audited profit loss account for the years 2013-14 till date to the Appellant, it seems that the Corporate Debtor is suffering from several irregularities. However, the provisions of Section 7 of the I B Code, 2016 provides for initiation of the CIRP by Financial Creditor; only and that too, if there is a Debt and Default . Once the Debt is converted into Capital it cannot be termed as Financial Debt and the Appellant cannot be described as Financial Creditor . The grievance of the Appellant does not fall under the provision of Insolvency and Bankruptcy Code, 2016 - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 111 of 2020 - - - Dated:- 2-9-2020 - [ Justice Venugopal M. ] Member ( Judicial ) And [ Dr. Ashok Kumar Mishra ] Member ( Technical ) For the Appellant : Mr. Ranvir Singh, Advocate. For the Respondent : Mr. Vivek Sinha and Mr. Vivek Malik, Advocate for R-1 and R-3. JUDGMENT DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER 1. The Appellant- Mrs. Rita Kapur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iately and the order of the Adjudicating Authority be set aside. She has also cited some of the judgments to prove her stand including on the issue of striking down and unfair an unreasonable contract; dishonesty should not be permitted to bear the fruits and benefits to the persons who played fraud or made misrepresentation etc. 5. On behalf of the Appellant, the following judgments are cited: a. In the decision of Palogix Infrastructure Pvt. Ltd; Vs. ICICI Bank decided on 20.09.2017 by this Appellate Tribunal. It has observed at para 32 33: Para 32: This I B Code is a complete Code by itself. This provision of the Power of Attorney Act, 1882 cannot override the specific provision of a statute which requires that a particular act should be done by a person in the manner as prescribed thereunder. Para 33: Therefore, we hold that a Power of Attorney Holder is not competent to file an application on behalf of a Financial Creditor or Operational Creditor or Corporate Applicant . b. In the decision of Hon ble Supreme Court 1996(9)SCC 388: Namburi Basava Subramanyam Vs. Alapati Hymvathi: decided on 02.04.1996, at Para 3/Page 18 has observed that : . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right. Para 54- Reversing the order of the High Court, this Court (per Shah, J., as he then was) made the following oft- quoted observations: 18 (1969) 1 SCC 869 Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party Applying, was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. e. In the decision of Hon ble Supreme Court 2019 (5) Scale 680 : Pioneer Urban Land Infrastructure Ltd. Vs. Govindan Raghavan; Geetu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Investor initially as a loan-provider in July, 2013. However, the Respondent categorically mentioning about Amended Agreement dated 01.12.2013 wherein all the Investors numbering 40(forty) have become either designated partner or general partner as per details furnished by Respondent in his counter page 57 to 67, where the name of the Appellant along with her signature is appearing at Serial No.29 of page 65 of the said document. However, the Appellant disputed her signature on the same. Apart from this agreement a Supplementary Agreement dated 25.03.2014 was also executed by all the partners including appellant and the same is recorded with ROC NCLT Delhi and Haryana, and the same is at para 7 of Written Submission of Respondents and Page No.77-93 of the Counter-Affidavit duly signed by Appellant at Page No.78-93 of the Counter-Affidavit. The Auditor certificate has also been furnished at Page No.94 to 99 of Counter Affidavit certifying the investment as capital contribution which includes the name of the Appellant also. The Respondent has submitted that the Appellant is not a Financial Creditor rather a related party and hence in no way she can be treated as a Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has a duty to his client, a duty to his opponent, a duty of the court, a duty to the society at large and a duty to himself. It needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand more so when there are conflicting claims 8. This Tribunal has noticed the submissions advanced on both the sides meticulously and is of the view that the Application under Section 7 of the I B Code, 2016 cannot be rejected on the ground that the same set was filed by the Power of Attorney Holder . The delay has also been condoned by this Appellant Tribunal vide its order dated 24.01.2020. The Appellant case is that she and her late husband has invested huge amount in the Corporate Debtor, and she is a senior citizen. The Corporate Debtor has failed to provide audited profit loss account for the years 2013-14 till date to the Appellant, it seems that the Corporate Debtor is suffering from several irregularities. However, the provisions of Section 7 of the I B Code, 2016 provides for initiation of the CIRP by Financial Creditor; only and that too, if there is a Debt and Default . So, the first question is the Appellant must be a Financial Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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